* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 19 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEVE A. WILSON,

Plaintiff-Appellant, and WADRESS HUBERT METOYER, JR.; SHERMAN CHEADLE; KERRY QUATTLEBAUM; WALTER WILLIAMS, JR.; LEROY THOMAS; DONALD RAY LAMBERT; WILLIAM C. DAVIS; WILLIE HILL,

Plaintiffs,

v. OKLAHOMA DEPARTMENT OF CORRECTIONS; OKLAHOMA PARDON AND PAROLE BOARD,

Defendants-Appellees. No. 00-6126 (W. District of Oklahoma) (D.C. No. 99-CV-494-L)

ORDER AND JUDGMENT *

BeforeBRORBY , KELLY , and MURPHY , Circuit Judges.1 Nine individuals, including the Appellant, signed the complaint in this

action. The notice of appeal, however, was signed only by the Appellant although it appears the Appellant attempted to sign the noti ce of appeal on behalf of all the Plaintiffs. The “notice of appeal must be signed b y the appellant’s counsel or, if the appellant is proceeding pro se, by the appellant.” 10th Cir. R. 3.1. Because the Appellant may not act on behalf of the other pro se Plaintiffs, the Appellant is the only proper appellant before this court. -2- After examining the briefs and the appellate record , this court has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. Appellant, Steve A. Wilson (the “Appellant”), proce eding pro se, appeals the district court’s dismissal of a 42 U.S.C. § 198 3 civil rights complaint he and several other individuals (the “Plaintiffs”) filed against defendants. 1 Plaintiffs’ complaint alleged several violations of their const itutional rights arising from the enactment of the Oklahoma Truth In Sentencing Act ( the “Act”). The Act made alterations to Oklahoma law relating to sentencing and parole. The Oklahoma Department of Corrections and the Oklahoma Pardon and Parole Board were named in the title of the complaint as defendants. Defendant, Oklahoma Department of Corrections, file d a motion to dismiss. The matter was referred to a United States magistrate judge who prepared a Report and Recommendation (“R & R”) recommending di smissal of the-3-

complaint. The reasoning underlying the magistrate ’s recommendation that Plaintiffs’ complaint should be dismissed is compre hensively expounded in the R & R. The court first concluded that defendants, as state agencies, were entitled to Eleventh Amendment immunity and that immunity had n ot been waived. See , e.g. , Alabama v. Pugh , 438 U.S. 781, 782 (1978) (per curiam); Knoll v. Webster , 838 F.2d 450, 451 (10th Cir. 1988); see also Wallace v. Oklahoma , 721 F.2d 301, 305-06 (10th Cir. 1983). The court also concluded that defendants were not “persons” within the meaning of 42 U.S.C. § 1983. See Will v. Michigan Dep’t of State Police , 491 U.S. 58, 71 (1989) (holding that states and g overnmental entities considered arms of the state for Eleventh Amendment purposes are not persons within the meaning of 42 U.S.C. § 1983); Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1237 (10th Cir. 1999) ( holding th at “a cause of action under § 1983 requires a deprivation of a civ il right by a ‘person’ acting under color of state law”). The court noted that Plaintiffs named several individuals employed by defendants in the jurisdict ional statement of their complaint. The court, however, concluded that thes e individuals were not properly before the court as defendants because Pla intiffs did not clearly state in their complaint that they intended these individual s to be defendants. See Fed. R. Civ. P. 10(2) (providing that all parties must be n amed in the title of the action);2 The claims against the Oklahoma Pardon and Parole B oard were dismissed

pursuant to 28 U.S.C. § 1915A. -4- cf

. Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (recognizing that “a party not properly named in the caption of a compla int may still be properly before the court if the allegations in the body of the complaint make it plain the party is intended as a defendant”). The district court next concluded that it would be futile to allow Plaintiffs to amend their complaint to name a proper person as a defendant. The district court noted that Plaintiffs had not sought or been granted certification to maintain their suit as a class action. The court then concl uded that Plaintiffs could not be permissively joined pursuant to Rule 20 of the Fede ral Rules of Civil Procedure because their claims do not arise “out of the same transaction, occurrence, or series of transactions or occurrences.” Fed. R. Ci v. P. 20(a). The court also noted that the relief sought by Plaintiffs includes the modification of the sentences each received. To the extent Plaintiffs attack the fact or duration of their confinement, their claims are not cognizable under 42 U.S.C. § 1983 but must, instead, be brought in a petition for a writ of habeas corpus. See Rhodes v. Hannigan , 12 F.3d 989, 991 (10th Cir. 1993). The district court, after considering Plaintiffs’ o bjections to the R & R, granted the motion and dismissed Plaintiffs’ compla int against both defendants 2-5-

concluding that it failed to state a claim upon whi ch relief may be granted. In reaching that conclusion, the district court specif ically rejected the argument made by Appellant in his objection to the R & R, th at the naming of several individuals in the body of the complaint was suffic ient to satisfy Rule 20 of the Federal Rules of Civil Procedure. Upon de novo review of Plaintiffs’ complaint and appellate brief, the R & R dated January 25, 20 00, the district court’s Order dated March 29, 2000, and the entire record on appeal, this court affirms the district court’s dismissal of Plaintiffs’ complaintfor substantially those reasons set forth in the R & R and the district court’s Ord er. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge